June 27, 2006

Blecch! I got a call to do a radio show on the flag issue just now, and I had to say I haven't been paying any attention to that nonsense. I notice it and just think ugh, they're doing that again.

UPDATE: Okay, that's over. Thanks to whoever came close to voting the wrong way but managed to keep their wits about them. I was looking the other way, waiting for it to end. Oh, at one point -- a couple points -- I put on C-Span2 and caught some bits of speeches. Everyone was just talking about how some brave man served in the military, either trying to make it seem as though caring about veterans demanded a yes vote or laboriously pointing out how you could care about veterans and still not want to amend the Constitution. What an embarrassment! Shameful.

188 comments:

"The Senate is one vote away from passing a constitutional amendment that would ban desecration of the U.S. flag, the closest that amendment supporters have been to passage. The American Legion, which supports the amendment, and the American Civil Liberties Union, which opposes it, both say there are 66 votes to pass it. Whether advocates can find the 67th vote to send the flag amendment to the states for ratification remains unclear. A Senate vote is set for the week of June 26."

Pat - as I observed in concluding the certain doom of another constitutional amendment, "rejection by any thirteen [states] will suffice to stymie an amendment." Which thirteen do you say will reject it?

DTL-It says "The Congress shall have power to prohibit the physical desecration of the flag of the United States." It does not require that said power be exercised, although one has to suspect that it will be. But the lack of an imperative means that, if you oppose flag burning laws, you're more than welcome to elect enough members of Congress who agree with you.

Quxxo - this is entirely besides the point, but if I have to respond to that...

Even the most cursorary survey of the way I comment here will show that I tend to refer (and link) back to what I've previously written, whether that is in comments here, comments on other blogs, or posts on other blogs I write for. The reason for that is twofold: first, because I see little point in re-arguing what has already been argued when I could just as easily link back to it. And second, because I believe that consistency of reasoning is extremely important; it matters to me that there is a consistency in what I have said vs. what I say now. Our hostess put this exceedingly compellingly in her electoral college article: "Legal minds tend to respond to a statement of clear and compelling principle . . . [and] [u]pon identifying a principle, they crave consistency. To stop and think who will win and who will lose is to sacrifice legitimacy."

-burn a cross, burn the flag. I don't like either activity but then the Southern boys are going to want equal protection for the stars and bars and the hide and horn flag of the United Meat Eaters will need protection....where do you draw the line?

I am against the amendment, but lest we think all the idiocy is on one side, note that Durbin credits the First Amendment to Thomas Jefferson. Although 49 states have passed resolutions in favor of the amendment, many of those were passed long ago. I would be surprised if states like Massachusetts and California passed the amendnment today. Whether there would be thirteen such states, I can't say.

3) Ban articles in newspapers that are critical of the Federal Government.

I doubt you'll find one conservative blogger that would be opposed to any of these. Heck - we can even appeal to the left. Let's ban racist remarks too. I mean if we're going to repeal the First Amendment, why stop with the flag?

As much as it bothers me to see someone disrespect the flag by burning it this is a waste of time.

John said it best - So burn the flag. It only gets you some publicity and shows that it is almost impossible to have a rational discussion with you. Kind of convenient-let's us know your're irrelevant.

Personally, I think many of those judicially-created exceptions should be tossed in the trash.

On the other hand, I have no problem with amending the constitution to create a specific textual protection for our national symbol.

Protecting the flag will not suddenly invalidate the First Amendment. In fact, it will have much less an impact than all the exceptions I already noted. (Exceptions that are paradoxically loved by the Left - the self-appointed guardians of "free" speech.)

DTL:"Let's pass amendments for the following: Ban blasphemy . . . Ban the teaching of evolution . . . Ban articles in newspapers that are critical of the Federal Government."

But as you well know - "Hav[ing] ... actually read the text of this amendment" and all - this amendment does not ban anything. Also, Elliot made an intriguing point, that "[p]rotecting the flag will not suddenly invalidate the First Amendment . . . [and] it will have much less an impact than all the exceptions [presently read into it]". I would suggest that, if anything, this amendment would potentially strengthen the first amendment; if you have an amendmend that exists for the sole purpose of creating an exception to the first amendment, does that not make it harder to justify the creation of judicially-managed exceptions to the first amendment?

Flag burning - however repugnant - is political speech. Think about it for cryin' out loud.

First - as long as the idiots who are determined to alienate the vast majority of the American people with their juvenile concept of "speech" have purchased said flag - it's their flippin' property. They can do with it as they will.

Second - I was a Boy Scout too - the only proper way to dispose of a flag that is too worn to display is to... wait for it... burn it. What’s left after you sort through the idiocy and the ashes is political speech.

I simply don't see this as a significant issue that will have any major societal benefit; political posturing pure and simple. Full disclosure: I never was a boy scout, so maybe I missed something in my background.

The Amendment is not necessary. All that is needed is a law by Congress that explicitly recognizes that purposefully using the flag in a disrepectful manner is equivilent to using fighting words.

I am reminded of the actions of Rick Monday in Dodger Stadium. He rescued a flag one day that two idiots were planning on burning. What most people forget is that Lasorda was right behind him. I shudder to think of what Tommy would have done to those two idiots if they had succeded.

If you burn or disrespect the flag in front of me, I will consider that fighting words, and I'll go to a jury with that defense any day.

When a flag is retired it the stripes and blue field are cut apart before it is burned. It is, therefore, no longer a flag.

Burning a flag to desicrate it as "political speech" is not the same. It is a provocative act only. If you burn a flag alone in the woods, does anyone smell it burn? No...so morons trying to make a point "perform" their flag burnings in the public square.

Yeah..it's freedom of speech, I guess. It's still just the obnoxious acting out of people in need of attention.

This is so stupid it makes your hair hurt. it also reminds us that Democrats pandering to the Kos Kidz are really pikers when it comes to tossing idiotic sops to their base. Arlen Specter, someone I generally agree with and admire, should be ashamed of himself.

I am respectful of the traditions and symbols of the United States. I have always been grateful and proud to live under our government. But as a Christian of the Catholic persuasion, I am mindful of the dangers of idolatry. Investing such loyalty and faith in a mere secular symbol strikes me, at the very least, as odd. While I am always willing to render unto Caeser, the potential of criminal sanctions for the modern equivalent of spitting on a statue of the Emperor makes me shudder.

I have no problem with an amendment to allow congress to pass a law making it illegal to burn the flag. I am not worried about the first amendment implications. If you don't like the policy of the US then write a blog or give a speach. Then others will write their views and the public will be engaged in free exchange of ideas. Burning the flag if front a vet who lost his arm in battle is akin to yelling the n-word at a group of African Americans. There is no exchange of ideas and there is no debate. The latter is not protected and I can imagine why the former should be.

Chief Justice Rehnquist got it right when he explained that burning the flag is "the equivalent of an inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others." Texas v. Johnson

Nazis are allowed to march through Jewish towns. And anti-gay bigots are allowed to shout out homophobic remarks at a gay pride rally.

But it sounds like you favor an amendment to ban those things too.

I think it's pretty easy. Just have an amendment that bans "offensive" speech. Hey - it's only fair. You seem to favor amendments that ban speech that YOU find offensive. So it's only fair for me to ban YOUR speech that I find offensive.

I think the amendment is a waste of time, not least because burning a flag says more about the burner than about his purported message. But why is burning a flag constitutionally protected, while burning a cross, koran or star of David is hate speech?

Burning the flag if front a vet who lost his arm in battle is akin to yelling the n-word at a group of African Americans.

Pretty much, yeah. That would by why the left thinks it's so cool.

But it's still unreasonable and destructive to criminalize either one.

downtownlad,

I gather you were all in favor of publishing the Mohammed cartoons, right? It's funny, but I remember quite a lot of people on the left insisting a few months ago that we should ban all offensive speech. Coincidentally, they're the same bootlickers who want to throw people in prison for mishandling the Koran.

Theo Boehm,

I don't see how burning the flag is equivalent to spitting on a statue of a ruler. The flag is a symobl of the nation. A person, even a very powerful one, is a person rather than an abstraction. I still wouldn't ban either one.

I would suggest that, if anything, this amendment would potentially strengthen the first amendment; if you have an amendmend that exists for the sole purpose of creating an exception to the first amendment, does that not make it harder to justify the creation of judicially-managed exceptions to the first amendment?

Good point, the other potential benefit is that once it passes, it doesn’t get trotted out every couple of years for a vote.

Pity though, if they wanted to amend the constitution in a useful way, they’d pass term limits for Congress, give the President a line-item veto (as most governors have), and a balanced budget amendment requiring a super-majority to raise taxes.

The Citizens Flag Alliance, a group pushing for the Senate this week to pass a flag-burning amendment to the Constitution, just reported an alarming, 33 percent increase in the number of flag-desecration incidents this year. The number has increased to four, from three.

June 23, 2006> Brooklyn, NY: Hooligans set American flags on fire in the front yards of seven homes on a patriotic stretch of Brooklyn, including that of a family who tragically lost their firefighter son on September 11. Vandals struck at around 4:00 a.m., setting Old Glory on fire in front of homes in Marine Park. “I’m hoping it’s just kids doing this. Regardless, they should be prosecuted,” one victim said. New York Post

June 2, 2006 West Haven, CT: What should have been a peaceful stroll along the shorefront bike path turned into an ugly scene late Wednesday as an allegedly drunken man desecrated the U.S. flag, hurled a racial slur at a witness and then chugged a beer in front of police, authorities said Thursday. Marissa Yaremich, Register Staff - West Haven, CT

May 30, 2006 Mineville, NYVandals crept in sometime Sunday night or early Monday morning, removed the American flag from the flagpole at the Mineville Post 5802 VFW and burned it.

May 13, 2006 Raymond, NH - Ten flags hanging at the Veterans of Foreign Wars Post 4479 and American Legion Post 90 building on Main Street were vandalized. “At first I thought the American flag was at half-staff, but when I got closer I could see every flag is sliced into ribbons,” a witness said. The Raymond Police Chief said the flags were slashed at the bottom edges about a foot and a half deep. The American flag was hanging upside down. The police have not made any arrests; there is a reward for tips that lead to the vandals’ arrest.

It seems to me that at least three of the cases could already be prosecuted under existing laws against vandalism, arson, trespass, and the like. Seems to me that the solution would be to prosecute the offenders under the existing law and beef up the penalties for any future offenders.

I hate and detest the cowardly people who would burn the US flag. But even so, this is a stupid and pathetic waste of time. We have more important work to do than babysitting adolescents who want to thumb their nose at us. Instead of an amendment, I advise those like me who hate such offenders to take them behind a convenient building and gently persuade them to stop.

I'd much rahter watch Rick Monday, who stopped a flag burning during a baseball game in Los Angeles, than see some cop run after the teenage dopes with lighters. Let a thousand fists bloom.

She's pretty much clamoring to have the editor of the New York Times taken out and shot. Just do a search for "treason" on her site. About 15 instances show up on the first page alone.

Thousands of conservative blogs are mimicking this line of attack.

It's a complete disrespect for the first amendment. These same bloggers freaked out over Janet Jackson and then made sure that CBS was fined and that Howard Stern was kicked off the air. These same conservative bloggers clamored for PBS to censor a show that showed lesbians. These same conservative bloggers clamored for a show to be taken off the air, because it showed a minister with a gay son. These same conservative bloggers are arguing for gay-straight alliances to be banned from high-schools.

It's censorship pure and simple. Just like the flag burning amendment.

- why is my example of yelling the n-word at a group of African Americans "my speech"? What makes you think that I would do that? Because I am not opposed to the flag amendment that means I must go around yelling obsenities at people? I was simply looking for an example to make a rhetorical point. That kind of personalization of the debate is completely counterproductive. Shall we have a personal argument now and defame each other's character?

Now if one were going to yell the n-word a group of African Americans will you not be charged with disorderly conduct or a similar ordanice or statue? I have handled such cases and the free speech defense does not work.

Wasn't implying that you would make such a statement. Sorry if it came off that way. But it is free speech. In Philadelphia, some guy went to a gay event and used a megaphone to yell anti-gay taunts at the crowd. The conservative blogosphere rallied to this guy as a "hero" by the way . . . The courts (and rightly so) said his first amendment rights were violated when he was arrested. I can't see how the "n" word being shouted is any different. Heck - the "n" word is used in almost every rap song on the radio.

The flag mendment is censorship,trivial, and boring, and I opppose it.

Except for the NYTimes article, censorship just isn't the right word to describe those other actions. Malkin et al weren't invoking the state to do anything. They used public pressure to get those things done. That's how it's supposed to work when you disagree. Your agenda lost.

What the NYTimes did by printing the method by which we were tracking terrorsits I view as flat out treason. I hope they are prosecuted. There is nothing wrong with state censorship of war secrets. Even the NYTimes itself argued for precisely this program in their own editorial pages in the months following 9/11. Now they are on the other side, so let's treat them as such formally.

Gahrie - That's not what the legislation says. It says that if there are gay people in history, then textbooks should not hide that fact.

So the real question is, do I think that textbooks should continue to censor the fact that many famous people in history were gay, or do I think that textbooks should teach the truth and mention the fact that these people were gay in order to add context to their character, well of course I favor the latter.

I'm against censorship. Why are we censoring the fact that gay people exist?

"The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic." Justice Oliver Wendell Holmes Jr., 1919

Nor would it protect a man creating an open fire, of any material, without a permit. No amendment to the constitution is needed. What is needed is the senators finding something better to do with their time... like putting out their own fires... or taking naps.

Care to name me one famous conservative blogger that blogged AGAINST the Alabama gay book burning law. Name me one that's arguing against the flag amendment. I'm sure they exist, but I can't find them. I have noticed that a lot of them are SILENT on this issue. Well there silence might very well end up with us having the second stupid amendment in a row. You do remember the 27th amendment, don't you?

DTL--Why is it important that one be able to name x amount of "famous people in history" who are homosexual? With the possible exception of artists whose homosexuality may have influenced their work, knowing the John Maynard Keynes was homosexual adds no further understanding to his views of fiscal policy. It is simply an irrelevant datum of information.

Can I ask how one defines the American flag? I'm serious - is there a clear definition of the shade of red, white and blue that should be used? The number of stripes, in which order? The number of stars? The alignment?

I understand that the amendment only gives Congress the right (but not the obligation) to pass anti-desecration laws, but if Congress did pass such a law, how would it be implemented? Wouldn't they have to define what the flag should look like? What if I burn something with a lesser number of stripes of a different shade of red?

I am seriously asking these questions. How would a law like this be constructed?

It's important, because gay teens deserve positive role models in their lives.

Gays don't learn about the positive aspect of gay lives from their families. All they learn are that gays have AIDS, that they are degenerate, evil, causing the destruction of society (oops - that's the President saying that).

And then straight people are so successful in making gay people feel like a pile of shit that they have suceeded beyond their wildest dreams. One out of every two males that attempts suicide are believed to be gay.

So why do I favor this law? To help the self-esteem of gay teens and drive down the suicide rate.

Maybe I should be asking you why you favor policies that will cause gay people to commit suicide?

"It says that if there are gay people in history, then textbooks should not hide that fact. So the real question is, do I think that textbooks should continue to censor the fact that many famous people in history were gay, or do I think that textbooks should teach the truth and mention the fact that these people were gay in order to add context to their character, well of course I favor the latter."

I guess it depends on whether it's actually a fact. So, for example, you'll sometimes see people claiming that Jefferson was autistic; there is absolutely no way to know one way or another, but suppose there was evidence no less compelling to suggest Jefferson was gay - should history record that? I would suggest it should not.

In fact, I have no idea what relevance you think someone's sexuality has to what their cause in history was. I have no idea if Joan of Arc was a lesbian, and I don't care. I don't see (a) how one would find out, or (b) what possible relevance that has to the acts for which she is historically noteworthy. We do not discuss that Alexander the Great was almost certainly as bent as a nine dollar bill, but then again, nor do we discuss the sex lives of Julius Cæsar, William Wallace, George Washington or Winston Churchill. Is it really important to waste an hour speculating about whether Alexander Hamilton was gay? Really? We care? Aren't there more interesting things about Alexander Hamilton to teach - and if there aren't, why are we teaching about him at all? The only scenario in which I can imagine it being relevant is when it directly bears on the noteworthiness of the person - if, for example, Henry VIII's third wife was in fact Jack Seymour - but how many figures in history are we interested in for the sex life who are also taught in public schools? I fail to see the relevance.

I haven't read this bill, so I'm uncomfortable speculating, but to force a discussion of the sexuality of historical figures when they happen to have been a homosexual - or even, one suspects, if they are merely suspected of it - seems bizarre and ridiculous. Indeed, the only rationale I can imagine for carving out this bizarre exception to prevalent practise is specifically to promote a particular impression of homosexuality through history. History is neither homosexual nor heterosexual; I defy you to find me a life of any import wherein that person's sexuality mattered. As I have pointed out before, I just don't think sexuality is nearly so relevant to most people's everyday lives as it is to a small subset of the population who seem to be absolutely obsessed with it.

Do we also teach students about the sex lives of their (presumably heterosexual) contemporaries? No. Did their sexuality have anything to do with the purpose for which they are historically noteworthy? No. The question isn't "why can't that be taught", it is, why in the world WOULD it be taught? Why is it so important (which it isn't) that we learn about the sexuality of homosexuals in history, but entirely unimportant (which it is) that we learn about the sexuality of heterosexuals in history? You might have a point if history placed great emphasis on the sexuality of its heterosexual heroes, but it does not; sexuality is simply treated - as it properly ought to be - as a complete and total irrelevance. I don't know what Constable's favorite drink was, because it is irrelevant to that which is is noteworthy. I have no idea who Lincoln's tailor was, but I don't feel my education is incomplete. And if you asked me what Richard the Lionheart's inside seam was, I could no more answer that question than I could tell you what his sexuality was. I couldn't tell you, because strangely enough, the history books I read tend to be more interested in battles against Saladin than the genital compliment of his partners of choice.

Let's face it. The real fear on the right is that if people actually learn about all of the amazing people in history who are gay - then maybe people would end up being less antagonistic towards gay people in general.

That is their fear. And they will do anything to stop it.

It's censorship pure and simple. First the flag - then the other stuff.

"Heterosexuality is considered to be the norm. When you learn about people in history, the assumption is that they are all straight."

That's like saying that drinking a moderate quantity of alcohol is considered to be the norm, and thus, when you learn about the people in history, the assumption is that they all drank moderate quantities of alcohol. Do we really need to waste valuable air telling children this? I mean, to be sure, there are exceptions: if you had an exceptionally influential puritan who railed against the demon drink and turned out to be a drunkard and killed himself when it came out, then maybe his alcoholic habits might be relevant. Or if FDR was drunk off his ass when he gave that famous speech after Pearl Harbour, maybe that would be worth noting. But otherwise, history does not record these minor, unimportant details of historically notable figures' lives. There is no "default assumption" - there are numerous aspects of many figures from history about which I - and the vast majority of the population - HAVE no assumptions about. I am more interested in what they did that was of importance than the (usually) entirely trivial question of who they were cheating on their spouse with. Do you know the name of John Adams' mistress? Should you? Does it matter that he had a mistress? And if it doesn't, why would it be of any more relevance if he had a mister instead?

DTL--for the record, I am not in favor of any policy that increases the rate of suicide among any segment of the population--I gather from what you have written above that you feel that if I comment about my family that is flaunting my sexuality? I couldnt disagree more, but if that is what you believe, so be it. Do I infer correctly you are suggesting that my talking about my family somehow puts gay people down? That is indeed breathtaking.

"Let's face it. The real fear on the right is that if people actually learn about all of the amazing people in history who are gay - then maybe people would end up being less antagonistic towards gay people in general. That is their fear. And they will do anything to stop it."

Yes. That's absolutely it. *eyeroll*

I mean, are you serious? You really believe that? Geez. That is not my concern. My concern is doing yet more damage to the already ruinous high school history curriculum by filling it full of frothy nonsense and speculation worthy of the National Enquirer (and it will, for the most part, be both speculative and irrelevant, as we have seen).

I would rather kids graduate with a working knowledge of the difference between the New Jersey Plan and the Virginia Plan than a working knowledge of who was doing what to whom in first century Greece - wouldn't you?

Michaelangelo wrote Sonnets to his male lovers. His newphew had the pronouns changed when they published the books, and it was changed back in 1893. Sorry - forgot to provide the link, but I just Googled it.

So yeah - I think that's pretty relevant to understanding his work.

It might be irrelevant if gay people were not so oppressed throughout history. But you'll be hard pressed to find a gay person who would say that their sexuality is irrelevant. Dealing with that struggle (both in socieyt as well as with yourself) surely has an impact on your work.

And we do hear about Presidential misstresses. Bill Clinton for example. Or JFK and Marilyn Monroe. Is that irrelevant?

And why does everyone learn about someone being gay when it's in a negative light, i.e. J. Edgar Hoover?

"DTL - Do I infer correctly you are suggesting that my talking about my family somehow puts gay people down? That is indeed breathtaking."

Perhaps the theory is like this: some would say that it's tactless to talk about alcohol around recovering alcoholics, so perhaps it's tactless to talk about marriage and children about people who can't marry and have children. I don't think it rises to "putting down", but there is, perhaps, an argument for an element of tact.

No Rogera. What I'm suggesting is that people are extremely condescending when they say that gay people should NEVER mention their sexuality.

Straight people mention their sexuality all the time. Every time they mention their spouse and kids. And no, I DON'T have a problem with that.

But try not mentioning your girlfriend, boyfriend, spouse, kids, etc. - and then think about what you're actually saying when you say that gay people should never mention their sexuality. It's the same thing. And it's an absurd request to ask of someone.

"Michaelangelo wrote Sonnets to his male lovers. His newphew had the pronouns changed when they published the books, and it was changed back in 1893. So yeah - I think that's pretty relevant to understanding his work."

I don't see why, unless those sonnets specifically reference gender. Shakespeare's sonnets are continuously dedicated to both men and women, regardless of the gender of their original recipient. Are they in some way devalued or changed if we discover Shakespeare had a boyfriend? I rather doubt it.

I would think the strongest argument you'd have with Michaelangeo's sonnets is to demonstrate that love between two men can be as pure and beautiful as love between, to stick with the theme, Shakespeare and Anne Hathaway. That's a fair use, but I'm not sure it should be taught in a history class.

"It might be irrelevant if gay people were not so oppressed throughout history."

Not so oppressed, evidently, that you are unable to find many, many examples of them that you want to take valuable time out of class to discuss.

"But you'll be hard pressed to find a gay person who would say that their sexuality is irrelevant."

Certainly you are walking proof of the proposition that some people make it the center and focus of their life, something I continue to find really quite sad.

"And we do hear about Presidential misstresses. Bill Clinton for example. Or JFK and Marilyn Monroe. Is that irrelevant?"

I don't think we should be teaching about Kennedy's mistresses, no. It's irrelevant to that for which Kennedy is noteworthy. Now, Clinton is a different case, because you really can't talk about the impeachment without getting into the perjury, and you can't get into the perjury without reaching "that question".

"And why does everyone learn about someone being gay when it's in a negative light, i.e. J. Edgar Hoover?"

I don't think kids should be taught anything more about J. Edgar Hoover's sexuality than they should about Hamilton's or Jefferson's or Alexander the Great's. I suppose there's a colorable argument that his sexuality is important to understanding Hoover, but at the high school level, I don't think a deep understanding of Hoover's motivations are relevant. It is incidental; the only thing that is relevant is that for which he is historically noteworthy, which is that for whatever reasons, he blackmailed a generation of American leaders, and may well have been one of the most corrupt, evil men in the senior ranks of American politics for a long time.

"I just want some gay people to shut up about it once in awhile. I. Don't. Want. To. Know."

Indeed. There's a law called "don't ask don't tell"; I have a similar policy: "won't ask, don't tell, don't care." ;)

I have no interest in people's sexuality; if someone is gay, great; if they're straight, great; I just don't care. It doesn't matter. What matters is "is this person an interesting and engaging person to be around", and people with monomania - particularly about issues I think are irrelevant - are rarely either of those things.

Simon - So you never ask people if they're dating anyone? You never ask about their spouse or kids? Interesting. Doesn't sound like you really care about other people's lives. For most people - their relationships are a pretty big deal.

Identifying gay heroes in textbooks is not going to do what you want it to do *anyway* DTL. It won't change the social situation of high school and the extreme pressure toward conformity involved in having several hundred hormonal teenagers confined together in a small place where they can feed on each other.

In that environment any bit of weakness, being fat, ugly, nerdish, not feminine enough, not masculine enough, if you don't fit in... and there is no escape. It's *school* and you've got to go.

Having a textbook include the sexuality of people in History isn't going to change that. Will and Grace has a better chance.

DTL Said: "Let's face it. The real fear on the right is that if people actually learn about all of the amazing people in history who are gay - then maybe people would end up being less antagonistic towards gay people in general."

I'm not antagonistic towards gay people, quite the contrary. I believe in equal treatment and have no animus towards extending legality to same sex marriage or any other equal rights that have been denied.

However, I am becoming antagonistic towards your one way attitude. You might get your agenda (and it IS an agenda) moved forward by not trying to cram it in our faces. I don't believe it constitures censorship to omit a person's sexual orientation in a historical context "unless" that sexual orientation is actually relevant to the person's achievements. Otherwise it is gratuitous information.

My real fear as a conservative/libertarian is not that students might learn someone was homosexual. My fear is that students are not learning ANYTHING. We are raising a generation of ignoramuses. Let's worry about that before pushing your pet agenda.

Honestly, after living in a predominantly gay neighborhood for many years, I would like to burn the damned rainbow flags. I have no problem with what they symbolize, but the colors are atrocious. Why can't all the gay artists get together and design something tasteful?

Gahrie, you're right that this discussion has gone afield of the bill you cite. I'm not in favor of requiring categorical approaches to teaching anything, about anyone. I mean really, this one would mean one could not say anything negative about J. Edgar Hoover or Roy Cohn! Unacceptable.

Our Constitution has always been the greatest living document on earth. When amended, it has expanded basic freedoms to the people (except of course for prohibition, which was soon recognized as a mistake and repealed).

Last year there were thirteen incidents of flag desecration across the country, and in almost all of those, the culprits were either teenagers or persons who were intoxicated.

So, do we really want the imprint of our generation on this greatest of all documents to be an amendment we passed for the express purpose of stifling a handful of teenagers, plus maybe a kook or two?

And think of all the anti-American flammable flagmakers this will put out of business--the worldwide economic impact is staggering.

It is indeed. Now, all those people who hate us will know exactly what to do to make Americans mad at them next time there is some story about someone drawing a Mohammed cartoon or tearing up a Koran. The makers of flammable flags will grow wealthy indeed. I'd love to have the franchise for selling them in Tehran.

Good question. What if you burned, for example, the stars and bars (which from a distance would look like an American flag, but in fact was a flag which represented a wannabe nation which openly rebelled against the U.S.)

In fact, Girish, if this passes, since it only specifies desecration of the American flag, maybe I should protest the law by going to Alabama and torching a confederate battle flag (better have my running shoes on though.)

Personally, I think many of those judicially-created exceptions should be tossed in the trash.

On the other hand, I have no problem with amending the constitution to create a specific textual protection for our national symbol.

Protecting the flag will not suddenly invalidate the First Amendment. In fact, it will have much less an impact than all the exceptions I already noted. (Exceptions that are paradoxically loved by the Left - the self-appointed guardians of "free" speech.)

and

I meant to say hate crime, not hate speech. I suggest you burn a cross downtown and see if you escape being arrested for a hate crime, whether or not you intend to intimidate anyone.

The content of commercial speech is regulable, as is the content of all speech for that matter, but the courts will allow more regulation of content than otherwise. The standard, however, for permissable governmental regulation, is still rather high. The ability for congress to limit speech that takes the form of "flag desecration" will be almost absolute, and as has been pointed out, could be just about any unfavorable treatment of a "flag."

Similarly, it is only the how (how much) of campaign spending and not the "content" (i.e. who it's being spent on) and the courts are far more generous towards any laws that govern how speech is done as opposed to the content of the speech. Though, as with commercial speech, the burden is usually still high.

The "fighting words" exception is, very very narrow. In fact, I don't think any conviction has been upheld because of it in the 60 years since it was created. If it's unconstitutional to apply a fighting words statute to "White son of a bitch I'll kill you," it's not an exception with many teeth

Hate crimes are prosecutable because of a motive not a belief. For instance, it is unconstitutional to convict someone for a racially motivated hate crime merely by showing that they belonged to a the KKK. As to cross burning downtown, it's true you'd be arrested and probably charged with disturbing the peace and it would all be on the constitutional up and up. However, they wouldn't be able prosecute you under a hate crimes law if you purpose was to, for instance, protest hate crimes law. And the state certainly could not prevent you from burning a cross just because you were burning one. Go out to your farm and burn all the crosses you want (assuming that the burning is legal). But burning a cross on the lawn of a black family is another thing.

As to libel I find it's inclusion here to be strange. You think it should be OK to spread falsehoods about people for some reason? This is compounded by the fact that obscenity is notably absent here.

Gahrie said...

The Amendment is not necessary. All that is needed is a law by Congress that explicitly recognizes that purposefully using the flag in a disrepectful manner is equivilent to using fighting words......If you burn or disrespect the flag in front of me, I will consider that fighting words, and I'll go to a jury with that defense any day.

Aside from the fact that the fighting words doctrine doesn't give rise to a criminal or civil defense for commiting assault and/or battery and you'd never get to the jury on the issue, the Supreme Court overturned a law that made burning the flag fighting words

Michelangelo was not "gay", since the whole essentialist notion of a gay identity didn't exist in his time. The idea of "gay" is strictly a late 19th and 20th century concept, and certainly can't be applied to historical figures in an academic setting if you're interested in actually teaching correct information. Michelangelo considered himself a devout Roman Catholic, and suffered a great deal of agony at the thought that he, in some way or other, was failing his God. There is no evidence that Michelangelo ever had sexual relationships of any kind (with men or women), though he did undeniably have "relationships" of one sort or another with (always) young men, who he idolized and idealized in the classical Greek way. Contrary to some commenter's claims, you would need to teach about these relationships, and about Michelangelo's very male ideal of beauty, if you were teaching students about his work in any detail. But, as I said, it would be misleading to students to convey the idea that Michelangelo was "gay" in the modern sense of the word. You also couldn't omit Michelangelo's sonnets, which remain a fairly important body of 16th century lyric poetry; they're certainly not dismissable.

The goal of education shouldn't be to give people "positive role models", it should be to teach information correctly. While it would be wrong to omit certain personal details in any in-depth study of historical figures, so too would it be wrong to convey the false impression that historical figures were "gay" in the modern connotations of that term. Oscar Wilde, perhaps the archetype of the stereotypical "queer", was happily married (until his downfall) with two children. That he loved men (physically as well as romantically) is undeniable. But he could not be accurately described as "gay".

What any of this has to do with flag burning is beyond me. As for that topic, all I can say is "ugh". I'm repulsed when an American burns the flag. But I'm also repulsed by cynical attempts to tinker with the Constitution that are so nakedly electoral pandering. Do we not have more important things to worry about, for God's sake? Ideals are sacred, flags (even as powerful symbols of those ideals) are not. As a nation founded primarily by Protestants, iconoclasts one and all, I'm surprised at this odd idolatrous streak.

Palladium, it is pretty atavistic, alright--may be a sacrificial ritual honoring the exceptional sacrifice of soldiers who've died under it. It seems odd to so honor a subset of the population, until you think about what it has taken to keep the nation in existence as is. IOW, the ultimate sacrifice is all about exceptions. Anyway, that may be part of the rationale.

Some will argue that this is a distraction to bigger issues. Well, maybe, but the fact is that Congress can multi task. After all, during the Civil War, Congress also passed the Homestead Act (which was very controversial in its day). On the same day Congress made US Grant Lt. General of the US, it also appointed a warden for the DC jail.

I think America is strong enough and great enough not to be bothered by some granola eating hippie burning the flag.

Granted, if they burned the flag in front of me I might punch the granola eating hippie, especially if he is wearing a "violence is not the answer" tee shirt. But I would not want the police power of the state intervening.

I have found that thanks to eating so much granola, hippies are small and hence easy to throw. But they should be allowed to burn their flags -- though Al Gore might scold them about how they are contributing to global warming.

And have you noticed that they always seem to bring this up in election years, never in non-election years when it would fail by more?

Plus, with Frist leaving the Senate, and Santorum in serious trouble in his re-election bid, the only member of the Republican leadership left would be Mitch McConnell, who would certainly be the new Majority or (wouldn't that be wonderful) Minority leader. And this week on ABC, he expressed at best lukewarm support for this, so it won't be high on his agenda.

"with Frist leaving the Senate, and Santorum in serious trouble in his re-election bid, the only member of the Republican leadership left would be Mitch McConnell, who would certainly be the new Majority or (wouldn't that be wonderful) Minority leader. And this week on ABC, he expressed at best lukewarm support for this, so it won't be high on his agenda."

Lukewarm or not, McConnell voted against the amendment, along with Robert Bennett (R-UT). That's going to make for a tense flight back to Utah with Orin for Bob.

It failed by one vote. This is starting to look perilously like the Seventeenth Amendment: an amendment desired by the vast majority of states, repeatedly passed by the House, repeatedly failing by narrow numbers in the Senate. Oh well; if the goal was to save Santorum's seat, mission accomplished.

I agree with tjl. The civil rights movement has won the high ground in the culture wars--the great middle of the country no longer wants anything to do with hatred of minorities of any category. Minorities will always be minorities, that's just the way the cookie crumbles. I don't think anyone would want to live in a totally homogenized cookie-cutter tribe, anyway.

There ya go--see, you can say that all you want, without fear of aauthority, but also without fear on the mob. Great country, even if some of the flags are a little scortched. There's countries now, and most countries in most of history, in which you'd have nowhere near the freedom to express yourself.

People who are running for election, in both parties, come out in favor of this amendment, because it's a gimme. That's why the support is increasing. Who the hell wants to face an advertisement that says they are anti-American.

We've dumbed down the Constitution with the 27th amendment. This one is no worse. And now there are clamors for a Constitutional Convention to ban gay marriage.

If you respond to something, you cannot then say that you are ignoring it. That said, no one is trying to silence you, Big Guy. It does very much seem as if you really want people to try to silence you, so then you can be all mad at them for trying to silence you.

There seem to be a few drama queens here who don't understand their national Constitution:

"Article V

The Congress, whenever two thirds of BOTH houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of THREE FOURTHS of the several states, or by conventions in THREE FOURTHS thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate."

Nope, didn't ask them all, but actions do speak. By the same token, how do you happen to be so sure that flag-boosters are against the Bill of Rights?

No, listen, the only reason I argue is to point out that your basic complaint is of the dearth of empathy in the country, and that insulting the folks who are appalled at flag-burning--even if you regard them tacky rubes--is to demonstrate that same dearth of empathy which offends you.

"Who gives a hoot about the American flag anyway. It's just a piece of cloth. I'd gladly burn one if I had one available."

Because it is not just a piece of cloth - it is the very symbol of the ideals for which countless lives were risked and lost, of the ideas which underpin and animate America. The United States is an anomaly: it is a polity which is defined not be a shared ethicity, or a history of occupying the same space since time immemorial, but by a shared and common commitment and fealty to certain bedrock principles. For this reason, Old Glory is inherently a symbol of immeasureable value in a way that the German flag, or the British flag, or even the French flag (the latter being similarly soaked in similar ideals to that which is ours, but ours was never tarnishd by the directorate and the restoration) can never be. As I put it two years ago, "it's important to never lose sight that it is under that flag, and in the name of the Republic for which it stands, our rights and priveleges were paid for in the blood and sweat of our forefathers."

Only in America do we find native-born citizens who understand what their nation is about less well than people who moved here. You remind me of one of those Christians whose parents were Christians, who was raised as a Christian, who has never had any cause or reason to examine his faith and thus has no capacity to explain why he is a Christian other than because so it has ever been. I really do feel at a loss to explain why the flag is so important to someone who inherited their citizenship by birthright and evidently cannot comprehend the uncommon and serendipitous blessing that they have recieved thereby.

This is one of those rare occaisions where I find myself in total agreement with Justice Stevens, and I gladly leave the last word to him: "It is more than a proud symbol of the courage, the determination, and the gifts of nature that transformed 13 fledgling Colonies into a world power. It is a symbol of freedom, of equal opportunity, of religious tolerance, and of good will for other peoples who share our aspirations. The symbol carries its message to dissidents both at home and abroad who may have no interest at all in our national unity or survival ... The value of the flag as a symbol cannot be measured ... The ideas of liberty and equality have been an irresistible force in motivating leaders like Patrick Henry, Susan B. Anthony, and Abraham Lincoln, schoolteachers like Nathan Hale and Booker T. Washington, the Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach. If those ideas are worth fighting for - and our history demonstrates that they are - it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration."

And if none of the things mentioned are important to you, DTL, if even you would not miss these things in their breach, then--unless you are a gekko on the side of a cactus in Death Valley--you have family, neighbors, and associates who do thrill to such sentiments, and you should respect them to the extent that they happen to be the people who keep the real zealots from coming into your home to cut off your head.

Finally we have a problem that will just go away if you ignore it, and congress won't leave it alone. The only reason you burn a flag is the same reason my three year old throws a tantrum, to get attention. Ignore them and they will stop.

I served on the flight deck of an aircraft carrier not to defend the flag, but rather what it stood for. I am reminded of what one of the east European dissidents (I wish I could remember who) said about he knew the party was lying about how bad the US was when they showed video of people flipping of the President and not being beaten or hauled off for it. Burn it, we'll just make another. Just don't take away more freedom to defend a totem, you will only lessen what it stands for.

Personally, I am against flag burning but if they pass a dumbass amendment like this I will be on the steps of the capital with my USS Saratoga zippo, a gallon of gas and Old Glory.

I was being diplomatic in saying 'at best lukewarm support.' Probably I should have given a direct quote from McConnell:

"I think the First Amendment has served us well for over 200 years. I don't think it needs to be altered."

He said a lot of things, but that is the essence of it. And it's a fact that he will (barring some really unforseen event) be the new Republican leader, so this one is likely to be shelved for a few years at least.

And as far as saving Santorum's career, I think it's too late for that. He's too conservative for a blue leaning (and more importantly becoming bluer) state like Pennsylvania. An Arlen Specter can still win a Senate race there running as a Republican, but not a Rick Santorum anymore.

Oh, and one more thing (I hope I can say this without being too insulting):

Yeah, it 'just' failed. These guys know how to count votes-- both in the Senate and in their states. They mostly actually understand the Constitution and how much it means, and probably not more than a handful actually want to change it.

But they carry out this drama periodically so those among them who are facing an election can go back and say, 'Yeah, darn right, I voted to protect the flag' before laying into their opponents as 'weak' on flag protection. Republicans are mostly the ones who do this, although Democrats who might run for President are just as determined to appeal to their base (so they vote against it) although in the case of Evan Bayh, he still has to think about Indiana.

This is grand theater, which I am not happy with at all considering the deadly serious issues we should have them focusing on.

But this kind of stuff is as carefully choreographed and it will always fail 'by one vote.' It's about firing up the base ahead of an election, and that's all it's about.

People who actually think it has a chance of passing probably think pro wrestling is real too.

And I will praise a Republican. I have a lot more respect for Mitch McConnell right now than I did a year or two ago, and the fact that he will be the new Republican leader in the Senate (hopefully minority leader) gives me much more reason to be optimistic about the future. Unlike Bill Frist, McConnell strikes me as a reasonable guy. Conservative, yes, but the kind of guy who has his head on straight.

This topic touched quite a few nerves. I'm not sure it really deserves all the drama on display here, but now that the chair breaking and plate throwing has mostly died down, I'd like to quietly say I very much agree with palladian and appreciate his intelligent and informed remarks.

As a Christian, there is an element of idolatry in this that I find disturbing. I remember being uncomfortable in the first grade in Catholic school when we learned the Pledge of Allegiance. It seemed idolatrous to me then, and it still does, to pledge allegiance to a mere piece of cloth, a secular symbol. I would have been much happier to simply pledge allegiance to the United States and leave out the flag. Protestants and others who think there is a streak of idolatry in Catholicism because of statues and images fail to understand that we never worship the object, but only what the object represents. I don't pray to a statue of Mary, but to Mary. An image can serve a useful and complex function in prayer life, but it is never the object of prayer.

Thus I have always failed to understand the importance attached to this particular piece of cloth. I realize it is an icon of our civic religion, but my Catholic background has sensitized me to the proper place of symbols. We may owe symbols respect but not obsequious veneration. I am happy to give my alligiance to the United States, but I don't know how I can do that to a piece of colored cloth.

I made a comparison in an earlier comment between disrespect for the statue of the Emperor in the Roman world and disrespect for the flag today. I made the point that it would be a shame to have the potential for criminal sanctions imposed for flag desecration. Martyrologies are filled with stories of early saints who refused to offer sacrifices before the statue of some recently-departed "divine" Caesar or to Vesta or some other deity in the Roman pantheon, and paid with their lives.

Flags descend from medieval heraldry and were unknown in the ancient world. The closest thing the Romans had was "SPQR" displayed on standards and other places, but they also had a pantheon of civic gods who were essential to the very concept of the state, and to which every citizen owed an obligation. The Emperor was eventually worked into this civic religion, and woe unto anyone who did not perform the necessary rituals before his statue when called upon.

I think you can understand how some of us Christians get a little touchy at the prospect of criminalizing disrespect for the symbols of something like a civic religion. I don't think, however, that anyone has suggested tossing flag-burners to the beasts in the arena or making sport of them in gladitorial shows. We thus may be thankful for the gentler times in which we live.

AJD said..."Shameful, huh? This is your base, Ann! These are the folks who eat up your Kerry-bashing and your constant Left baiting. And these are the folks who push your precious site meter. So, are you really ashamed of your base, your primary readership?"

As far as the Senate goes, I voted for both my state's Democrats. In fact, in my decades of voting, I've never voted for a Republican Senatorial candidate.

I don't know what the split in my readership is. I call them as I see them.

In fact, in my decades of voting, I've never voted for a Republican Senatorial candidate.

Neither have I. The state Republican party is very unsuccessful in nominating sane candidates. Let's face it, the last successful candidate they had was a drunk! At least he spawned that famous political party on campus, though, the BKSOD.

I think a strong nominally conservative candidate would do very well against Herb Kohl -- can anyone mention anything he's done for the state from DC (versus for the Bucks)? Instead they'll throw a token South Dakota-type Republican to the wolves.

Eli:"And it's a fact that [McConnell] will (barring some really unforseen event) be the new Republican leader..."

Hmm - an unforeseen event like being the vote that sunk the flag burning amendment? But for his vote, there would be twenty eight amendments by election day.

"[A]s far as saving Santorum's career, I think it's too late for that. He's too conservative for a blue leaning (and more importantly becoming bluer) state like Pennsylvania. An Arlen Specter can still win a Senate race there running as a Republican, but not a Rick Santorum anymore."

What is the evidence that PA is "becoming bluer"? In 2004, Kerry won 50.92; in 2000, Gore won 50.6; in 1996, Clinton got 49.17 of the vote, and in 1992, he got 45% of the vote; in 1988, Dukakis got 48.39%, and in '84, Mondale got 45.99%. In '80, Carter got 42.4%, but in '76, he got 50.4%, essentially a rounding error away from present-day totals. In the same period, Pennsylvania elected three Republican governors and three Democratic governors, distributed fairly evenly. In the 2004 election, Pennsylvanians sent 12 Republicans and 7 Democrats to the U.S. House of Representatives; the same numbers in 2002; in 2000, 10 Democrats were sent and 11 Republicans (2000 Census took away two seats), while in 1998, 11 Democrats and 10 Republicans were sent, a repeat performance from both 1996, 1994 and 1992. One more to push us back past the 1991 redistricting: in 1990, 12 Democrats and 11 Republicans were sent.

It isn't clear to me from the foregoing that there is some clearly-detectable blue drift. Granted, that's only a quick look back, and a far better metric would be to look at the history of the State Legislature, but I presume you already have that - or something even better - that leads you to your "going bluer" conclusion; could you post it?

I agree, though, that there's little evidence that Pennsylvania, the state I lived in for my first 21 years, is becoming bluer. It's never been very red, though. I grew up in rural Pennsylvania -- very conservative. My home district in the PA Legislature has been Republican for 20+ years. But the two cities are very Democratic, although maybe not liberal. The push-pull between the two has always driven interesting results.

It was revelatory to move to Wisconsin and vote for someone who actually wins

As a Californian, I'm saddened by Feinstein's vote on this issue. Mitch McConnell's op-ed on the subject was pretty courageous, considering his base.

BTW, can anyone familiar with Minnesota politics explain why Mark Dayton is not running for re-election? It seems to me that he tried awfully hard (ran a few times) to get elected and then seemed to disappear into obscurity once it finally happened. What's the story?

BTW, can anyone familiar with Minnesota politics explain why Mark Dayton is not running for re-election?

Because he’s a rotten excuse for a Senator who is rightfully despised by people on both sides of the aisle. Since the last race cost him about $12 million of his personal funds, he may not have the funds to do it a second time around and very few people seem inclined to throw their money away on his reelection effort.

Thanks, Thorley. That helps. I'm surprised Patti Murray isn't on that list, given that she seems to be the perpetual winner of the "dimmest bulb in the Senate" award in The Washingtonian magazine's annual survey of congessional staffers ;-)

As one who has occasionally taken some shots at our blog hostess, I want to thank Ann for providing space for this interesting and wide ranging discussion.

To say that the cure for abuses of free speech is more free speech has become a cliche, but cliches become so because of the underlying truths to which they provide a convenient, shorthand reference. The robust discussion in this comments section demonstates why dissent is to be encouraged and celebrated, rather than stifled in the manner that the proponents of the flag "protection" amendment would dictate.

That having been said, in common parlance to desecrate means to profane or despoil the sacred nature of something. Would any statute that criminalizes the "desecration" of the flag require the government to prove beyond a reasonable doubt that, prior to the offending act, the flag was a sacred object?

downtownlad said..."Why shouldn't Democratic Senators vote for this? Why should they lose elections over this issue when Republicans don't have to. So what if the Constitution suffers. We act like Senators are actually there to do what's right for the country. As if. They are there to do what's right for them. We need term limits now. To protect the voters from themselves."

That's one of the most absurd comments ever! Don't you know term limits are unconstitutional?! You're so concerned about the Constitution that you want something that's unconstitutional. LOL.

Ann,"[DTL:] That's one of the most absurd comments ever! Don't you know term limits are unconstitutional?! You're so concerned about the Constitution that you want something that's unconstitutional. LOL."

Given the context - which is, after all, a discussion about an amendment to the Constitution, it is scarcely beyond the realm of conception that DTL meant that we should amend the Constitution to include term limits, something I have previously argued for, too.

Sigh. She's got some pandering to do. She didn't vote for the same-sex marriage amendment. She's lost a good bit of her base, with a smaller New Orleans population. She has to show the small-town Catholics of central Louisiana, and the good Baptists of North Louisiana and damn-near Texas that she's not a big city liberal feminist.

Simon: It still doesn't make sense (unless DTL was joking). You can't be outraged at the people who would amend the Constitution to provide for something they want if you yourself want to amend the Constitution to provide for what you want. Either you stand on the unamended Constitution or you don't. Once you start advocating amending it, you can't be outraged at others who want to amend it.

Simon - I did mean via an amendment, just as we did with the President. Actually, the best bet would be to repeal the amendment that allowed for direct election of Senators. We had better Senators when state legislatures picked them.

But Ann can still pick on me. After all - I hijacked the comments of this thread (not intentionally though!) for way too long.

That's not true Ann. I don't have a problem with amending the Constitution per se. I have a problem with amending the Constitution to repeal part of the Bill of Rights. In this case, the first amendment.

I think we can all agree that the Bill of Rights is a hell of a lot more important than, let's say the 27th amendment - which was written so poorly - that Congress has figured out a way to bypass it yearly on auto-pilot.

We should not be amending the Constituion lightly.

Term limits are already in the Constituion for the Presidency and it's been very successful. 99% of the members of Congress are re-elected each time. There is a strong argument that term limits will introduce more competetive races, and thus more democracy.

Buddy, in the context whereof I spoke--a hypothetical criminal prosecution for "desecrating" a flag--my opinion about whether any particular object is or is not sacred is irrelevant; I am not a prosecutor or factfinder. I do not personally regard a flag nor any other political symbol as sacred--I worship One Whose kingdom is not of this world.

As an aside, I would contend that a governmental designation of a political symbol as sacred would potentially pose establishment clause problems.

As to your second question--no, I cannot prove that opinions or "feelings"--mine or anyone else's--are "objective truth", for what that's worth. The question itself is nonsensical; why do you think they are called opinions or feelings?

Ann Althouse said..."Simon: It still doesn't make sense ... [because] [y]ou can't be outraged at the people who would amend the Constitution to provide for something they want if you yourself want to amend the Constitution to provide for what you want."

When has DTL ever said - either in this context or when talking about the FMA - that he is outraged because people are talking about amending the Constitution, per se, rather than on the merits of what they want to put into (or take out from) it?

If anything, I'd suggest that he is probably far more "pro" amendment (as a general matter) than I would be, as I think it's safe to say that he is one of the least conservative regulars here, and I am one of the more conservative regulars, with particularly strong force where constitutional law is concerned. I just don't think he's being particularly inconsistent here.

DTL-I didn't see your comment before I posted. As to your second point, per the link I posted above, I am strongly supportive of repealing the 17th Amendment, but I don't think that is an either/or solution vis-a-vis term limits; I think you absolutely have to do both. Nor do I think you can just repeal the 17th; part of the reason for the immense pressure to change the method of selecting Senators was that the original constitutional system had proved to have serious structural deficiencies in practise (see D.E. Kyvig, Redesigning Congress: the Seventeenth and Twentieth Amendments to the Constitution in J. Zelizer, THE AMERICAN CONGRESS, pp.356-369), and if you simply go back to the original design, those same structural defects will manifest themselves again, with, one must suspect, the same long-term consequences. The mistake of the seventeenth amendment wasn't that it changed the method of selecting Senators, it was the WAY in which it changed it.

I suspect that we disagree on precisely what is broken and why, but for that very reason, it pleases me greatly that we might both be able to agree on a remedy. :p

"Maybe we need an amendment against gerrymandering. Maybe Congressional districts should be distributed proportionately based on the popular vote, akin to a parliament? 99% re-election rates just breed corruption. Our founders would not have been happy."

I agree that the re-election rates would shock the framers, and there used to be a time, not so long ago, when the GOP agreed. Ah, the hubris of power. Re gerrymandering, well, gerrymandering is nothing new (remember, after all, for whom it was named), but I tend to be an ascetic on this: for a long list of reasons, I wouldn't support PR, but I think Congressional districts should be drawn with regard to literally nothing but raw population figures, and perhaps geographic constraints. In other words, if it were left to me, demographics would be a dirty word in redistricting: the lines would be drawn in as arbitrary a manner as is humanly (or, in the computing age, digitally) possible, with no consideration whatsoever of race, gender, income, anything. Period.

As regards the Texas decision today - I find it sufficient embarrasment that we are forced to rely on Justice Kennedy in cases where he happens to be right, but it is almost intolerable that the disposition of the Court also turns on his view in matters where he is so clearly not only wrong, but virtually incoherent. Kennedy's opinion was ripped to shreds by the Chief Justice and Justice Scalia. Indeed, in seven terse sentences, Scalia utterly demolished a good deal of the endless bulk of the majority's opinion:

"[C]laims of unconstitutional partisan gerrymandering do not present a justiciable case or controversy. Justice Kennedy’s discussion of appellants’ political-gerrymandering claims ably demonstrates that, yet again, no party or judge has put forth a judicially discernable standard by which to evaluate them. Unfortunately, [Justice Kennedy] then concludes that the appellants have failed to state a claim as to political gerrymandering, without ever articulating what the elements of such a claim consist of. That is not an available disposition of this appeal. We must either conclude that the claim is nonjusticiable and dismiss it, or else set forth a standard and measure appellant’s claim against it. Instead, we again dispose of this claim in a way that provides no guidance to lower-court judges and perpetuates a cause of action with no discernible content. We should simply dismiss appellants’ claims as nonjusticiable."

I agree wholeheartedly. And of course, what tatters of Justice Kennedy's opinion that are still left standing after that blast are themselves flattened by the opinion of the Chief Justice, joined by Justice Alito. For all Justice Kennedy's complaints of lack of compactness, that the problem with the new district created by the gerrymander is its (admittedly bizarre) geography (a long narrow stretch of land from the Rio Grande stretching into central Texas):

"What is blushingly ironic is that the district preferred by the majority — former District 23 — suffers from the same “flaw” the majority ascribes to District 25, except to a greater degree. While the majority decries District 25 because the Latino communities there are separated by “enormous geographical distance,” and are “hundreds of miles apart,” Latino communities joined to form the voting majority in old District 23 are nearly twice as far apart. Old District 23 runs “from El Paso, over 500 miles, into San Antonio and down into Laredo. It covers a much longer distance than … the 300 miles from Travis to McAllen [in District 25].” So much for the significance of “enormous geographical distance.” Or perhaps the majority is willing to “assume” that Latinos around San Antonio have common interests with those on the Rio Grande rather than those around Austin, even though San Antonio and Austin are a good bit closer to each other (less than 80 miles apart) than either is to the Rio Grande."

What a singular result: for years, the court as been divided into two implaccably opposed camps, and yet the addition of two new Justices into the mix has resulted in neither the Scalia/Thomas camp or the Breyer/Stevens camp prevailing: rather, yet another camp seems to have joined the field, one which apparently disagrees with everyone.

Frankly, I have seen nothing in today's decision and subsequent discussions thereof that really pursuades me that my pre-existing views were in error (indeed, I read several things that pursuade me yet further); the courts should, as gracefully (or at least expeditiously) as possible withdraw from this entire messy business, and the expiring provisions of the VRA should be allowed to expire. What began as an admirable and wholly appropriate remedial measure to remove entrenched discrimination has become - with the able and willing assistance of the courts - an institution that "reinforce[s] and preserve[s] for future mischief the [very] way of thinking that produced race slavery, race privilege and race hatred" in the first place.

The Fourteenth Amendment was enacted to ensure that blacks and other ethnic groups - or, as it has been construed, any other suspect classification - were not discriminated against; that does not, and in fact, logically cannot be, extended to amount to a requirement for descrimination in favor of. As it has been interpreted by Congress the Court, there is no difference between these propositions, but I think that those who framed the Fourteenth Amendment would be astonished to see that an amendment which -- to paraphrase Our Hero's dissent from Johnson v. Transportation Agency, 480 U.S. -- was intended as a guarantee that race would not be used as a classification to a guarantee that it often will.

In my view, the court should recognize this distinction, and hold that as much as Congress has power under §5 to prevent "negative" discrimination, it lacks the authority to enact a scheme of any other kind of discrimination. Naturally, "[i]ndividuals who have been wronged by unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or a debtor race."

Alexander Bickel wrote:"The lesson of the great decisions of the Supreme Court and the lesson of contemporary history have been the same for at least a generation: discrimination on the basis of race is illegal, immoral, unconstitutional, inherently wrong, and destructive of democratic society ... racial quota derogates the human dignity and individuality of all to whom it is applied; it is invidious in principle as well as in practice. Moreover, it can easily be turned against those it purports to help. The history of the racial quota is a history of subjugation, not beneficence. Its evil lies not in its name, but in its effects: a quota is a divider of society, a creator of castes, and it is all the worse for its racial base, especially in a society desperately striving for an equality that will make race irrelevant."

For the foregoing reasons, I disagree with what is implicit in the Chief Justice's opinion, and the entire theory underlying the majority's view: I do not believe that a district must concern a certain racial quota to be valid; indeed, I would suggest that if it were shown that it was draw to achieve such a quota, it would for that very reason be invalid. Nor do I believe that the creation of "majority-minority" districts can ever be a compelling state interest, any more so than the creation of "majority-majority" districts can be; "[i]n my view, government can never have a 'compelling interest' in discriminating on the basis of race in order to 'make up' for past racial discrimination in the opposite direction." Consequentially, with regard to the instant case, I would require a showing that district 25 was designed for no purpose other than to discriminate against latinos qua latinos. Since that is clearly not the case here (to the extent there was intentional discrimination, it was against democratic voters, not latinos - who, as Justice Kennedy perversely admits, "have divergent needs and interests, owing to differences in socio-economic status, education, employment, health, and other characteristics," and thus, contra the Chief Justice, neither can nor should be assumed to vote en bloc) I would affirm the judgement of the Court of Appeals.

I've been using Scott as a definitive source for a long time on stuff like this. Scott is a true professional (though he doesn't do his blog for money) and analyzes his data very carefully. And in 2004, he called 48 of the 50 states correctly in the Presidential race, and also was right on all of his Senate projections.

If you don't like that, then consider Larry Sabato as a source (he does get paid-- a lot-- for knowing about political trends). And his point is that the heavy growth in Pennsylvania has been in the east, around Philadelphia, and that that area has been trending heavily liberal, overwhelming conservative areas which have remained conservative but haven't kept up in terms of growth.

Eli,Scott's analysis lterally amounts to this much: "Based on voting patterns since 1992, Pennsylvania is trending DEMOCRAT." That's it. And it isn't as if there aren't ongoing periodic measures of political feeling in Pennsylvania; there are: elections every two years! The most salient one, I would suggest, are the races in PA for the PA House, the U.S. House, the governorship and the President. As I demonstrated above, no trend is readily apparent in three of those four, which means that to demonstrate this apparent blue tint, the evidence has to come from the ongoing disposition of the state House. With the greatest of respect to Scott, an ipse dixit isn't really going to suffice here. There either is or is not an identifiable blue-leaning trend in Pennsylvania politics, and if it doesn't exist at the ballot box, I would suggest that it doesn't exist, period. How does the saying go? "Show me don't tell me."

Try Dave Leip's atlas. He uses blue for Republicans and red for Democrats, but if you go to the Presidential results page for Pennsylvania and hit the 'trend' button (where the results are based on both voting patterns and population growth) it is very clear what direction things are heading in.

Try Dave Leip's atlas. He uses blue for Republicans and red for Democrats, but if you go to the Presidential results page for Pennsylvania and hit the 'trend' button (where the results are based on both voting patterns and population growth) it is very clear what direction things are heading in.

Eli,An appeal to Dave Leip doesn't get you very far either - where do you think the numbers I quoted above of Presidential elections came from? ;)

There is only a "democratic trend" in Pennsylvania's Presidential returns if you narrow the scope of your inquiry to only include recent returns. It's certainly true that Kerry got more votes in 2004 than did Gore in 2000, so I suppose if you want to call that a trend, there's a colorable argument for that. But when you put the last handful of elections in context, it becomes apparent that there's really nothing new going on here.

To demonstrate that the state is really leaning blue, as I've said a few times, what you need to demonstrate is a persistent and sustained reduction in GOP support in the state, and the best way to demonstrate that is to show that Republicans have had a consistent and net loss of seats in the Pennsylvania legislature over the last, let's say, thirty years. The Presidential results aren't really conclusive either way, and the representation in the U.S. Congress tends to actively repudiate this supposing decline of GOP support, so its in the returns for the state legislature that you'll find evidence for the drift, if it exists.